R v Diab - [2005] NSWCCA 64

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Diab [2005] NSWCCA 64

FILE NUMBER(S):
2004/2397

HEARING DATE(S): 17 February 2005

JUDGMENT DATE: 01/03/2005

PARTIES:
Regina v Kade Diab

JUDGMENT OF: Grove J Bell J Buddin J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70118/02

LOWER COURT JUDICIAL OFFICER: Shaw J

COUNSEL:
G. Smith SC (Crown)
S. Odgers SC (Applicant)

SOLICITORS:
S. Kavanagh (DPP)
Galloways (Applicant)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
SENTENCE
MANSLAUGHTER
PRINCIPAL OFFENDER ( A JUVENILE) COMMITS MURDER BY SHOOTING WITH PISTOL
KNOWLEDGE OF PRESENCE OF WEAPON AND INTENTION TO THREATEN VICTIM
CONDUCT OF FIRST INSTANCE PROCEEDINGS
OBVIOUS DECISION NOT TO SUGGEST MITIGATION BY REASON OF PROVOCATION BY VICTIM
DECISION REPUDIATED ON APPEAL
WHETHER MISCARRIAGE
SERIOUS OFFENCES IN WHICH WHAT BECAME THE MURDER WEAPON USED TAKEN INTO ACCOUNT ON FORM 1
SENTENCE NOT EXCESSIVE

LEGISLATION CITED:
S21A(3) Crimes (Sentencing Procedure) Act 1999

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/2397
GROVE J
BELL J
BUDDIN J
1 March 2005

REGINA v KADR DIAB

Judgment

GROVE J: This is an application for leave to appeal against severity of sentence imposed by Shaw J for the crime of manslaughter for which the prescribed maximum sentence is twenty five years imprisonment. The applicant was sentenced to imprisonment for nine years with a non parole period of six years. In imposing that sentence his Honour took into account pursuant to the Form 1 procedure, offences of affray, possessing a loaded firearm in a public place and possession of an unauthorized firearm. Those three offences took place at Brookvale shortly after 1 am on 23 April 2001. The offence of manslaughter was committed at Hurlstone Park on 26 April 2001 between midnight and 1 am.
The victim was a youth aged eighteen years who was shot dead by a juvenile co-offender referred to as MA. The applicant was born on 8 April 1982. MA was born on 30 January 1984. They were accordingly aged nineteen and seventeen when their offences were committed. On the first day of trial MA was arraigned before Shaw J on a charge of murder to which he pleaded guilty. His Honour sentenced MA to imprisonment for thirteen years six months with a non parole period of eight years six months which was varied on Crown appeal to this Court to imprisonment for sixteen years with a non parole period of eleven years: Regina v MA [2004] NSWCCA 92.
The applicant was represented by senior counsel at the sentencing proceedings. A different member of the Inner Bar represented him in the appeal. It was acknowledged by the latter that the first ground sought to be advanced involved a proposition which was not put at first instance. I will elaborate upon this when dealing with the grounds.
The basic facts of the offence were placed before the sentencing court in a document signed by the Crown Prosecutor, counsel for the applicant and the police officer in charge of investigation. This document read:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Diab

Details

AGLC: R v Diab [2005] NSWCCA 64
Case: [2005] NSWCCA 64
Decision Date: 1 March 2005

CaseChat Overview and Summary

The case of R v Diab was heard in the New South Wales Court of Criminal Appeal. The appellant, Kadr Diab, was convicted of manslaughter for his involvement in the death of Jai Graham Jago. The offence occurred when Diab and a juvenile companion confronted Jago and another individual, resulting in a physical altercation. The juvenile then shot Jago in the chest with a pistol, which resulted in his death. Diab was aware of the presence of the firearm and had purchased it, though he did not anticipate that it would be used to cause harm.

The central legal issue before the Court of Criminal Appeal was whether the original sentencing decision was a miscarriage of justice. Specifically, the Court needed to determine whether the original sentencing judge erred in failing to consider the use of the firearm in a prior incident on 23 April 2001, two days before the murder, as a Form 1 matter. In the prior incident, Diab had threatened a group of young men with the same firearm used in Jago’s murder. Additionally, the Court examined whether the sentence imposed was excessive, considering all the circumstances of the case.

The Court of Criminal Appeal found that the original sentencing judge did not err in failing to consider the prior incident involving the firearm as a Form 1 matter. The Court reasoned that while the use of the firearm was a significant factor, it did not constitute a serious offence in its own right that warranted separate consideration. Moreover, the Court concluded that the sentence imposed was not excessive, taking into account the gravity of the offence and the appellant's age at the time of the offence. The Court emphasised that the sentence reflected the serious nature of the crime and the appellant’s role in facilitating the events that led to the victim's death.

The Court of Criminal Appeal dismissed the appeal and upheld the original sentence imposed on Diab. The appellant remains convicted of manslaughter for his role in the death of Jai Graham Jago.

Orders

Orders of the court

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Background

Background to the litigation

The basic facts of the offence were placed before the sentencing court in a document signed by the Crown Prosecutor, counsel for the applicant and the police officer in charge of investigation. This document read:“FactsOn the evening of 25 April 2001 (Anzac Day) the deceased, Jai Graham JAGO, and his friend Andrew Clayton were at Grumpy’s Hotel on New Canterbury road, Hurlstone Park. Shortly before midnight the deceased and the victim left “Grumpy’s” and walked along New Canterbury Road at Hurlstone Park.Whilst crossing Old Canterbury Road the deceased became involved in a verbal exchange with the offender, Kadr DIAB, and the young person, (MA). At the time the accused was driving a 1963 Toyota Corona, registration number VPX386. This car is owned by the offender DIAB’s sister.The offender and the young person stopped their vehicle and confronted the deceased and the victim near the intersection of Old Canterbury Road and Hanks Street. A further verbal exchange between the deceased, offender and young person took place. The deceased become involved in a physical exchange with either the offender or the young person.The young person then shot the deceased, once in the chest, fatally injuring the deceased. The offender was aware of the presence of the firearm, as he purchased it. The offender was not aware that the young person would use the firearm other than to threaten.After the deceased was shot he ran a short distance into Hanks Street, where he collapsed. The offender and young person returned to the vehicle and the offender drove away along Old Canterbury Road.Andrew CLAYTON rendered assistance to the deceased until the arrival of Ambulance and Police. The deceased was dead on arrival at Royal Prince Alfred Hospital.WeaponThe young person later disposed of the firearm, this has not been recovered.VehicleThe vehicle of interest has been recovered by police. It is owned by the offender’s sister.FlightOn the 4th of May, 2001 the offender and the young person left Australia and travelled to Lebanon. The young person remained with the offender’s family, residing with him until they both returned to Australia on the 17th of June.ArrestOn Wednesday the 24th of April, 2002, the offender was arrested at his place of residence by investigators from Strike Force RESEN and conveyed to Bankstown Police Station. The offender, in consultation with his legal representative, participated in a short electronically recorded interview, during which he declined to answer questions.PleaOn Friday 18 July 2003 the offender entered a plea of guilty to manslaughter. The offender, at sentence, would also like matters on a Form 1 taken into account.Form 1 matters – Short facts.On 23 April 2001, two days before the offence occurred, the offender DIAB was involved in an offence at Brookvale.The offender and the young person drove into a garage/service station at Brookvale and an altercation occurred between the young person, the offender and a group of young men.On this occasion the offender DIAB alighted from the motor vehicle and threatened these young men with the same firearm as was used in the murder of Jai Jago. DIAB held the pistol in his hand with his arm extended, pointing the weapon at several of these young men. He then returned to the vehicle and drove off at speed.On the night of the murder, when the two offenders alighted from their vehicle the young person (MA) had possession of the firearm”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GROVE J

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Ratio Decidendi

Legal Principle Established

Established by: GROVE J

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